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<=
/span>This
matter came before the Office of Environmental Adjudication (the OEA or the
Court) on the Indiana Department of Environmental Management’s Motion=
to
Dismiss.The Court, being duly
advised and having read the Petition for Administrative Review, motion, bri=
ef,
reply and record, now enters the following findings of fact, conclusions of=
law
and final order.

FINDINGS OF FACT

1. &n=
bsp;
On July 26, 2011, the Indiana Department of
Environmental Management (IDEM) issued Approval No. 20038 (the Approval) to=
the
City of Harrison=
st1:City>
(the City).The Approval auth=
orizes
the City to construct sanitary sewer improvements along the west lane of St=
ate
Street from the intersection of Dair Street to approximately 1,065 feet nor=
th
in the City of Harrison, Indiana.

&nb=
sp;

2. &n=
bsp;
On August 9, 2011, the Town of St.
Leon (the Petitioner) filed its Petition for Administrative Review on Behal=
f of
the Town of St.Leon and for Stay Pending
Resolution of Appeal.

3.&n=
bsp;
The Petitioner claims that the Approval was unlawfu=
lly
issued.The grounds for this =
claim
are as follows:

·The Approval authorizes the construction of
sanitary sewers in areas of Dearborn County, Indiana which are already served by the Town of St. Leon.This is an alleged violation of 7 =
U.S.C.
1926(b), which provides that no other entity may curtail or limit

=

[2011 OEA 1=
52, page
154 begins]

=

the
service provided by an association which has received a Farmers Home
Administration loan from the USDA[1] Rural
Development.

·The City does not have authority to serve the
area under City of North Vernon v.
Jennings Northwest Regional Utilities, 829 N.E.2d 1 (Ind. 2005).

4. &n=
bsp;
The Court ordered the parties to appear for a
prehearing conference on September 6, 2011.All parties appeared by counsel on=
that
date.The IDEM filed its Moti=
on to
Dismiss and requested a continuance of the stay hearing set for September 2=
1,
2011.No party objected to a
continuance of the stay.The
presiding Environmental Law Judge (the ELJ) granted the motion and further
issued a Case Management Order setting a deadline of October 6, 2011 for fi=
ling
responses to the Motion to Dismiss.

5. &n=
bsp;
The Petitioner did not file a response to the Motio=
n to
Dismiss.The IDEM filed its r=
eply
in support of the motion to dismiss on October 17, 2011.

CONCLUSIONS OF LAW

&n=
bsp;

1.The
Office of Environmental Adjudication (“OEA”) has jurisdiction o=
ver
the decisions of the Commissioner of the Indiana Department of Environmental
Management (“IDEM”) and the parties to this controversy pursuan=
t to
I.C. § 4-21.5-7, et seq.=
p>

2.Findings
of Fact that may be construed as Conclusions of Law and Conclusions of Law =
that
may be construed as Findings of Fact are so deemed.

3.The IDEM has filed a motion to dismiss the Petitioner=
for
its failure to state a claim upon which relief may be granted.This is essentially a motion to di=
smiss
under Indiana Trial Rule 12(B)(6).“In reviewing a Rule 12(B)(6) motion, a court is required to t=
ake
as true all allegations upon the face of the complaint and may only dismiss=
if
the plaintiff would not be entitled to recover under any set of facts
admissible under the allegations of the complaint. This Court views the
pleadings in a light most favorable to the nonmoving party, and we draw eve=
ry
reasonable inference in favor of that party.”Huffman v. Indiana
Office of Environmental Adjudication, et al., 811 N.E.2d 806, 813 (Ind. 2004).

4.To
prevail on the merits of this case, the Petitioner must show that the
applicable regulations for construction of sanitary sewers stated in 327 IA=
C 3
were not met in the Approval issued to the City.OEA reviews IDEM’s decisions=
to
determine whether IDEM acted in conformity with controlling statutes and
regulations.See, e.g., In re: Objection to Issuance of Section 401 Water Quality
Certification COE ID No. 198800247 Conagra Soybean Processing Co.,1998 WL 918585, at *3, OEA Cause =
No.
98-W-J-2052 (Nov. 12, 1988).Allegations that fail to raise any issue concerning compliance with
controlling legal

[2011 OEA 1=
52, page
155 begins]

requirements fa=
il
to state a valid claim.In re:Objections to Issuance of Public Water Supply Construction Permit No.
WS-2924 Issued to the City of =
Mishawaka,
Indiana, 1989 WL 436899=
, at
*6, OEA Cause No. 89-W-J-241 (IDEM, Sept. 1, 1989).IDEM is prohibited from expanding =
its
requirements for such a Permit beyond those specified in 327 IAC 3.

5.The
Approval merely finds that the specifications submitted by the City meet the
technical standards for a sanitary sewer in 327 IAC 3.This rule does not require an appl=
icant
to verify the service area of the proposed sanitary sewer.The Petitioner has not made any
allegations that the City has failed to comply with any of these
requirements.

6.327
IAC 3-6-6 states:“[a]ll
required permits or exemptions from other federal, state and local units mu=
st
be obtained prior to the commencement of construction of any sanitary sewer
covered by this rule.”=
In
addition, the Approval states, “[a]ll local permits shall be obtained
before construction is begun on this project.”Approval, p. 2.It is clear that it is the City=
217;s
obligation to comply with all applicable laws and regulations.This Approval, in no way, authoriz=
es the
City to construct the sewer if it does not have the authority to service the
area.

7.The
Petitioner’s claims of error require that the OEA determine whether t=
he
City has encroached upon its territory.&nb=
sp;
The OEA does not have the authority to determine who has the authori=
ty
to service the disputed areas.

8.For
the reasons stated above, the Petitioner has not stated any basis for revok=
ing
the Approval upon which the OEA can grant relief.The IDEM’s motion to dismiss
should be granted.

FINAL ORDER

&=
nbsp; IT
IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Petition for Administra=
tive
Review on Behalf of the Town of St.Leon an=
d for
Stay Pending Resolution of Appeal is DISMISSED.

&=
nbsp;

&=
nbsp; You
are hereby further notified that pursuant to provisions of I.C. § 4-21.5-7-5, the Offic=
e of
Environmental Adjudication serves as the Ultimate Authority in the
administrative review of decisions of the Commissioner of the Indiana
Department of Environmental Management.&nb=
sp;
This is a Final Order subject to Judicial Review consistent with
applicable provisions of I.C. § 4-21.5.Pursuant to I.C. § 4-21.5-5-5=
, a
Petition for Judicial Review of this Final Order is timely only if it is fi=
led
with a civil court of competent jurisdiction within thirty (30) days after =
the
date this notice is served.

&n=
bsp; IT
IS SO ORDERED this 26th day of October, 2011 in Indianapolis, IN.